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R. Vendateswara Rao Vs. P. Vijaya Lakshmi - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in[1987]62CompCas429(AP)
ActsMotor Vehicles Act, 1939 - Sections 110A
AppellantR. Vendateswara Rao
RespondentP. Vijaya Lakshmi
Appellant AdvocateM.V. Ramana Reddy, Adv.
Respondent AdvocateP. Gangaiah Naidu and ;S. Hanumaiah, Advs.
Excerpt:
.....liability of owner of vehicle against act of driver - when act of driver beyond the authority of owner then owner cannot held liable - held, owner was not vicariously liable against such act of driver. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the..........therefore, the first respondent owner is vicariously liable or payment of compensation. since the owner is liable, the insurance company is also equally liable for payment of compensation. in support thereof, he relied upon a division bench judgment of the court in united india fire and general insurance co. ltd. v. maddali suseela p[1979] acj 110 (ap). 3. the above contentions have been resisted by sri p. gangaiah naidu, learned counsel for the first respondent, stating that the evidence on record clearly establishes that he owner, i.e, the first respondent gave express instructions not to take any passenger for hire or reward. therefore, even if there is any amount taken by the driver, this act is outside the course of his employment and it is an unauthorised act.. therefore, the.....
Judgment:

Ramaswamy, J.

1. The appellant was travelling in lorry ADF 446 from Gudur to Nellore on July 16, 1980, and when the lorry reached a point near Spinning Mills is Dargamitta, Nellore town, an accident occurred in which the appellant sustained injuries. The appellant laid a claim under section 110A of the Motor Vehicles Act, 1939, for a compensation of Rs. 26,800. He impleaded the first respondent, the owner, and the second and third respondents, the insurance companies. He did not implead the driver as a party respondent. After framing fence has taken place as a result of rash and negligent driving of the driver of the lorry ADF 446. But, it found that the first respondent-owner expressly instructed the driver not to carry any passengers for hope or reward. Therefore, the owner is not liable equally since exhibit B- 1 policy does not cover the risk for passengers being carried in the vehicle. The third respondent with whom the vehicle was insured was found not liable. As a fact, it was found that the appellant sustained injuries. He would be entitled to a compensation of Rs. 14,500. In view of the fact that both the first respondent owner and the third respondent-insurance company are not liable for the compensation, the Tribunal below dismissed the application as against which the present appeal has been filed.

2. In this appeal, Shri M.V. Raman Reddy, learned counsel for the appellant, has contended that though the driver who is examined as R.W-2 has not denied that he was given free lift to the appellant, the evidence clearly establishes that R.w-3 collected fare of Rs. 5 from the appellant and, therefore, it is for hire or reward. When the driver during the course of his employment, i.e., while driving the vehicle has collected fare and taken the appellant as a passenger, it is for hire or reward. Therefore, the first respondent owner is vicariously liable or payment of compensation. Since the owner is liable, the insurance company is also equally liable for payment of compensation. In support thereof, he relied upon a Division Bench judgment of the court in United India Fire and General Insurance Co. Ltd. v. Maddali Suseela p[1979] ACJ 110 (AP).

3. The above contentions have been resisted by Sri P. Gangaiah Naidu, learned counsel for the first respondent, stating that the evidence on record clearly establishes that he owner, i.e, the first respondent gave express instructions not to take any passenger for hire or reward. Therefore, even if there is any amount taken by the driver, this act is outside the course of his employment and it is an unauthorised act.. Therefore, the first respondent is not liable for the payments of compensation. In support thereof, he relied upon the judgment of a Division Bench of this court M. Vishalakshi v. Luthern Church, : AIR1978AP310 .

4. Shri S. Hanumaiah, learned counsel appearing for the third respondent, has placed before, me copiously several decisions contending that the policy. exhibit B-1, does not cover any liability for payment of compensation when a goods vehicle carries passengers for hire or reward. Proviso (2) to section 95 of the Motor Vehicles Act expressly excludes such liability. He also contended that even the owner is not liable because the owner has expressly prohibited the driver from carrying passengers. He cited some decisions in support of his contention. But in view of the concession made by learned counsel for the appellant in his reply that the claim against the insurance company is not pressed, the need to go into that question is obviated. The decision is United India Fire and General Insurance Co. Ltd. v. Maddali Suseela [1979] ACJ 110 (AP), has no application to the facts in this case. In that case, the liability of the insurance company had not been challenged. The ratio in that case need not be considered is view of the fact that the appellant has not pressed the claim against the insurance company.

5. The next question is whether the first respondent=owner is vicariously liable for the acts of the servant, viz., the driver, R. W.-1. I believe the evidence of P. W.-1. It is admitted that the driver ia a stranger. Therefore, the theory that he has given free lift is an obvious falsehood. The appellant has examined himself as P. W.-1 who has clearly stated that he paid Rs. 5 as hire to take him from Gudur to Nellore. I do not find any ground to disbelieve his evidence in this regard. The fact that he was travelling in the vehicle and that he sustained injury during the course of travelling is an admitted fact. Under these circumstances, the necessary conclusion is that the appellant paid Rs. 5 to the driver, R. W.-2, and that he was carried for hire as a passenger in the lorry ADF 446.

6. The next question is whether the first respondent owner is vicariously liable for the tortious act committed by the servant. Admittedly, R. W.-2 is the driver and the first respondent is the owner. In Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. P. Ltd., : [1977]3SCR372 , it was held (at page 1740) :

'It is now firmly established that the master's liability is based on the ground that the act is done in the scope or course of his employment or authority.'

7. When the driver was actually responsible in the course of employment, in giving a lift, that was sufficient to make the defendant liable. Their Lordships of the Supreme Court observed that the ratio laid down by Lord Denning in Young v. Edward Box and Co.. Ltd. [1951] 1 ILR 789, 793, which is as follows :

'.....the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant's liability. So far as the driver is concerned, his liability depends on whether the plaintiff was on the lorry with his consent or not.

The next question is how far the employers are liable for their servant's conduct. In order to make the employers liable to the passenger, it is not sufficient that they should be liable for their servant's negligence in driving. They must also be rescindable for his conduct in giving the man a lift. If the servant has been forbidden, or is unauthorised, to give anyone a lift, then no doubt the passenger is a trespasser on the lorry so far as owners are concerned ; but that is not of itself an answer to the claim. In may opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position, not only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment.'

8. This ratio was approved by the Supreme Court and held that the servant was acting in the course of his employment and, therefore, the owner is liable for the tortious act of the servant. The same view was followed in Abdul Jabbar v. Muniammal, : AIR1981Mad112 , and Oriental Fire and General Insurance Co. Ltd. v. B. Parvathamma [1984] ACJ 680 ; [1986] 60 Comp Cas 341 (Kar). I have also taken the same view in CMA No. 604 of 1981 dated August 14, 1985, (Vijayanagaram Narasimha Rao v. Ghanashyam Das Tapadia [1986] 60 Comp cas 697 (AP). I have no hesitation to conclude that when a servant commits a tortious act during the course of his employment and if it is within the scope of the authority, the owner is vicariously liable for the tortious act of the servant.

9. The next question is whether the first respondent is liable for the damage caused due to the accident which occurred. I have carefully considered the evidence of R. W.-1 and 2, particularly with reference to R. W.-2. His evidence in the chief examination is categorical that the first respondent did not authorise him to carry any passengers for hire of reward. Though he stated that he did not charge any hire and gaze free lift to the appellant to travel in the cabin of the lorry which I have rejected earlier, the driver admitted in his evidence that he was picking passengers now and then by collecting fares of his pocket expenses. Obviously, the appellant must have been taken for the private gain of the driver, R. W.-2, without any authority or benefit to the owner, the first respondent. When he is not authorized to carry any passengers in the vehicle without the permission, either express or tacit, of the owner, the necessary conclusion is that he outstepped his authority during the course of his employment and, therefore, the driver alone is liable for the tortious act and the owner is not vicariously liable. The same view was taken by a Division Bench of this court in M. Vishalakshi's case, : AIR1978AP310 . The Tribunal below also considered the entire evidence and reached the same conclusion.

10. The reasoning is well supported by evidence and, therefore, it does not warrant interference in this appeal. The appeal is accordingly dismissed, but, in the circumstances, each party is directed to bear their own costs.


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